IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0411 OF 2005

Between:

AIYAZ SAYED-KHAIYUM
s/o Sayed Abdul Khaiyum
Plaintiff

- and -

FONG YOOK KIN aka KINA FONG LIU JUN
aka LANA FONG and WILEON FONG
Defendants

Counsel: Mr. D. Sharma for the Plaintiff
Mr. G.P. Lala for the Defendants

Date of Hearing: 24th August, 2005
Date of Ruling: 26th August, 2005

RULING

The plaintiff claims that he had a binding agreement with the defendants to purchase a house and its land. They say the defendants have reneged on that agreement and he now seeks specific performance thereof.

A caveat was lodged on the title of this property by the plaintiff. He seeks continuance of that caveat until the determination of this case. The power to extend is found at section 110(3) Land Transfer Act, Cap. 131.

The defendants oppose this interim order. In essence they say there was no binding agreement concluded. The plaintiff’s evidence on the affidavits, taken at its highest, does not show such a binding agreement. They cite section 59(d) of the Indemnity, Guarantee and Bailment Act, Cap. 232.

It is pertinent to note that other persons have lodged a caveat on the title to this property.

I have before me the affidavits of Aiyaz Sayed-Khaiyum dated 10th of August 2005 and 22nd of August 2005 to support the application. There are no other affidavits before me. 

Mr. Sayed-Khaiyum states in his affidavits that there was an agreement to sell to him 23 Lovoni Road Suva by the three defendants. A sale and purchase agreement (Annexure C) was drawn up, although not as yet signed and dated. He received a letter from Prestige Real Estate dated the 8th February 2005 (Annexure B) from the estate agents talking about a deposit. He says the delay was because two of the defendants are in China and a Power of Attorney had to be notarised. He exhibits an e-mail dated 28th February (Annexure D) to support this and the defendants' willingness to enter into the agreement. There were then some delays in setting up the Power of Attorney. It was then on the 12th of May 2005 the plaintiff received what appears to be a fax from Wileon Fong stating the agreement was invalid as the defendants had been waiting for the last four weeks for documents. The receipt for the deposit of $5,000.00 is exhibited at Annexure H. There is then exhibited documents in Chinese and English concerning the power of attorney and e-mail correspondence concerning the problems that have arisen. Annexure A shows the lodging of the caveat on the 24th of May. There is also another caveat lodged on the 2nd of June by apparently a Mr. & Mrs. Prasad.

It is agreed that the principles set out in American Cyanamid Company v. Ethicon Limited [1975] AC 396 as approved by the Fiji Court of Appeal in Roxy Motorparts Limited and Raman Prasad Charan v. Habib Bank Limited in Civil Appeal Case No. 60 of 2004. Those principles are that the court, before it makes this kind of Order must be satisfied that:

1.	The plaintiff has established a good arguable claim to the right he is seeking to protect,

2.	That there is a serious question to be tried and 

3.	That on the balance of convenience the relief should be granted.

The plaintiff is seeking specific performance of what he alleges is a binding contract for the sale of land. When asked by the court what was so particular about this piece of land as opposed to any other which could not be compensated for in damages the plaintiff responded that it was adjacent to property he already owns and it is being acquired for his own family’s accommodation. This was not stated in the affidavits.

The plaintiff concedes there is no specific signed and written agreement of this contract. He states that when the documents exhibited to the affidavits of Sayed Khaiyum are read together there is more then sufficient to satisfy Section 59(d) of the Indemnity, Guarantee and Bailment Act. There is the drawing up of the agreement, the requiring and payment of a deposit, the making arrangements of a Power of Attorney to be granted to one of the three defendants to act on behalf of the two, and e-mails showing that by their very wording an agreement was in existence. As far as signatures are concerned he said it is clear from the face of those documents that one or other defendants was acting on behalf of the others and had clearly consulted with them.

The defendants reiterated that all that exists is an undated, unsigned draft agreement, some printed names at the bottom of e-mails, no documents on which it can be said that one defendant or another is acting on behalf of the other and that put simply this was a sale that fell through before any enforceable agreement was reached.

Section 59(d) of the Indemnity, Guarantee and Bailment Act reads as follows: 

“No action shall be brought –

(a) (b) (c)	…

(d)	upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them ; or

(e)	…, 

unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.

I do find in the circumstances on the face of the documents exhibited by the plaintiff in his affidavits that there is a good arguable claim to the right he is seeking to protect. This does not, of course, mean he will be successful in the action. Put together the documents exhibited by the plaintiff are sufficient to found an action.

There is clearly a serious question to be tried.

I must now consider the balance of convenience of the parties. If the plaintiff is unsuccessful in the action then I can see that, on the face of the documents currently before me, it is arguable that damages would be an adequate remedy for the defendants. They are seeking to sell their premises at the best price. It would appear that they have another purchaser, and possibly at a higher price. I do note that other purchaser is not a party to these proceedings.

If the Plaintiff is successful and the caveat has been removed then there is always the possibility of finding another house in the immediate area. Such would be compensatable in damages. However, what tips the balance in his favour is the fact that it is alleged these premises are adjacent to ones he currently owns and he is purchasing for family purposes.

In these circumstances I will order that the caveat is extended until further order. This is done on the basis that by 3.00 p.m. on 31st August 2005 the plaintiff files and serves a further affidavit confirming that his particular interest in this property is as stated above and setting out precisely where the two properties are in relation to each other and specifically which family purposes he has in mind.

Second, if the defendant consider there are further factual matters I should take into account in deciding whether or not to allow the order to remain until the conclusion of these proceedings, then he may file and serve affidavits accordingly and I will hear any filed application to remove.

Given the temporary order I am making I will give directions for the speedy hearing of this case.

(R.J. Coventry)
JUDGE